2019 PLP 1949 (SCMR)

ASIF SAEED KHAN KHOSA, C.J.

Mushtaq Khan appellant in Criminal Appeal No. 144-L of 2015 and many others were booked in case FIR No. 100 registered at Police Station Makarwal, District Mianwali on 16.09.2006 in respect of offences under sections 148 and 302, P.P.C. read with section 149, P.P.C. for causing the murder of one Ghazi Marjan and for causing injuries to Mst. Jumma Khela and Mst. Meer Sitara in an incident taking place at about 01.00 p.m. on 16.09.2006 in village Karandi within the jurisdiction of the above mentioned Police Station in the backdrop of a motive according to which a brawl had taken place between Kashmir co-accused and some children belonging to the complainant party a day prior to the present occurrence. A cross-version of the same incident was advanced by the accused party of the said FIR through the statement made by one Badshah Mir before the police on the same day and according to the said cross-version it was the complainant party of the FIR which had aggressed against the accused party of the FIR and in the process three persons belonging to the accused party had been injured. In the FIR as well as in the cross-version the date, time and place of the occurrence were not disputed by the parties. One person had died and two others were injured from the side of the complainant party of the FIR and three persons belonging to the accused party of the FIR had been injured in the same incident. In the FIR case out of the six accused persons facing trial only one person namely Mushtaq Khan appellant in Criminal Appeal No. 144-L of 2015 had been convicted and sentenced whereas in the cross-version out of the seven accused persons only one person namely Noor-ul-Haq, respondent No. 1 in Criminal Appeal No. 104-L of 2014, had been convicted and sentenced. We have noticed that many of the acquitted accused persons from both the sides had been attributed active and effective roles but the stories in that regard had been disbelieved by the courts below. Both the parties had tried to hide the truth and to minimize their own roles. After disbelieving the stories advanced by both the rival parties the High Court had reconstructed the story and had observed that the case in hand was a case of a free fight entailing individual liability of each accused person. We have, however, found that the truth in this case was mixed very heavily with something which was untrue and both the parties to this case had not approached the court with clean hands. In these circumstances we have found it to be impossible to discern the truth from such a heap of falsehood and, thus, we are left with no other option but to acquit Mushtaq Khan appellant by extending the benefit of doubt to him. It may not be out of place to mention here that during the pendency of these appeals Criminal Miscellaneous Application No. 425 of 2019 has been filed before this Court seeking acquittal of Mushtaq Khan appellant on the basis of a compromise between him and the heirs of Ghazi Marjan deceased as well as the injured victims. As we have already found that it was not possible to conclude that the prosecution had proved its case against Mushtaq Khan appellant beyond reasonable doubt, therefore, we have not felt persuaded to get the acclaimed compromise verified.

2. For what has been discussed above Criminal Appeal No. 144-L of 2015 is allowed, the convictions and sentences of Mushtaq Khan appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. During the pendency of his appeal before this Court Mushtaq Khan appellant had been admitted to bail by this Court upon suspension of his sentence. His bail bond and sureties shall stand discharged.

3. As regards Criminal Appeal No. 104-L of 2014 respondent No.1 namely Noor-ul-Haq was an accused person in the cross-version case and he belonged to the complainant of the Challan case. After a regular trial respondent No. 1 was convicted by the trial court for an offence under section 324, P.P.C. and was sentenced to a term of imprisonment and to pay fine besides having been convicted and sentenced for an offence under section 337-D, P.P.C. However, on appeal his sentence for the offence under section 324, P.P.C. was reduced by the High Court to that already undergone by him and he was acquitted of the charge as far as the offence under section 337-D was concerned. For acquitting respondent No. 1 from the charge under section 337-D, P.P.C. the High Court had observed that no report of an expert had been produced before the trial court and, thus, it was not medically clear as to whether the injury attracting the provisions to section 337-D, P.P.C. sustained by the injured victim was a direct result of the injury caused by respondent No.1 to the victim or not. We have found then elusion reached by the High Court vis- -vis the offence under section 337-D, P.P.C. to be legally possible and, thus, no occasion has been found by us for interference with the same by this Court Criminal Appeal No. 104-L of 2014 is, therefore, dismissed. The bail bond and sureties of respondent No. 1, if any, shall stand discharged. Criminal Miscellaneous Application No. 425 of 2019 in Criminal Appeal No. 144-L of 2015

4. As the main appeal has been allowed by this Court, therefore, this miscellaneous application has lost its relevance. Disposed of. MWA/R-11/SC Appeal accepted.